Citation Nr: 0205458
Decision Date: 05/28/02 Archive Date: 06/03/02
DOCKET NO. 99-23 533 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
cardiovascular disorder.
2. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
pulmonary disorder.
3. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
residuals of trauma to the mouth and loss of teeth.
(The issue of whether new and material evidence has been
presented to reopen a claim of entitlement to service
connection for a skin disorder of the feet will be the
subject of a later decision.)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W.L. Pine, Counsel
INTRODUCTION
The veteran had active service from April 1954 to March 1956
and from October 1962 to October 1965.
This appeal is from an October 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
The Board of Veterans' Appeals (Board) denied reopening of
previously disallowed claims in a decision of April 2001.
(That decision also remanded claims for service connection
for a gastrointestinal disorder and for an ankle disorder, on
which final decisions of the Board remain pending.) In
September 2001, the United States Court of Appeals for
Veterans Claims (Court) granted the joint motion of the
Secretary and the veteran to vacate and remand the Board's
decision as to those issues and to stay further proceedings
in the Court due to the recent enactment of the Veterans
Claims Assistance Act of 2000, (VCAA). 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West Supp. 2001). This
decision, except as to the issue involving a skin disorder of
the feet, responds to the Court's order.
The Board is undertaking additional development on the issue
involving a skin disorder of the feet pursuant to authority
granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 19.9(a)(2)). When it is completed,
the Board will provide notice of the development as required
by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan.
23, 2002) (to be codified at 38 C.F.R. § 20.903.) After
giving the notice and reviewing the appellant's response to
the notice, the Board will prepare a separate decision
addressing this issue.
FINDINGS OF FACT
1. The RO denied service connection for cardiovascular and
pulmonary disorders in a September 1994 rating decision.
2. The veteran was notified of the decision by letter dated
September 27, 1994, and he did not disagree with that
decision.
3. Evidence submitted since the September 1994 RO decision
is not so significant that it must be considered in order to
fairly decide the merits of the claims for service connection
for cardiovascular and pulmonary disorders.
4. The RO denied service connection for trauma to the mouth
and loss of teeth in a June 1995 rating decision.
5. The RO notified the veteran of the decision by letter
dated June 16, 1995, and he did not disagree with that
decision.
6. Evidence submitted since the June 1995 RO decision is not
so significant that it must be considered in order to fairly
decide the merits of the claims for service connection for
residuals of trauma to the mouth and loss of teeth.
CONCLUSIONS OF LAW
1. The September 1994 denial of service connection for
cardiovascular and pulmonary disorders is final. 38 U.S.C.A.
§ 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d),
20.302(a) (2001).
2. Evidence submitted since the September 1994 denial of
service connection for cardiovascular and pulmonary disorders
is not new and material, and the claims are not reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001).
3. The June 1995 denial of service connection for residuals
of trauma to the mouth and loss of teeth is final.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a),
3.160(d), 20.302(a) (2001).
4. Evidence submitted since the June 1995 denial of service
connection for residuals of trauma to the mouth and loss of
teeth is not new and material, and the claim is not reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
Service medical records from the veteran's first period of
active duty are negative for any complaints or findings of
trauma to the mouth or of a cardiovascular disorder. In May
1954, the veteran was treated for defective teeth needing
extraction. Pertinent diagnoses included abscess,
periapical, chronic, teeth #8, 11; exposure pulp, teeth #2,
7, 13; and malformation of the alveolar ridge in areas #7-13.
The veteran underwent extraction of teeth #2, 7, 8, 11, and
13 and alveolectomy in areas # 7-13. In February 1956, the
veteran was diagnosed as having an upper respiratory
infection (URI).
On separation examination in March 1956, the veteran denied
severe tooth or gum trouble, asthma, shortness of breath,
chronic cough, chest pain, high or low blood pressure, and
palpitation or pounding heart. Examination of the mouth,
lungs, chest and heart was normal. Blood pressure was
120/82.
Service medical records from the veteran's second period of
active duty revealed that he complained of chest congestion
in January 1964. In June 1965, he was diagnosed as having a
URI.
On separation examination in September 1965, the veteran
denied severe tooth or gum trouble, asthma, shortness of
breath, chronic cough, high or low blood pressure, and
palpitation or pounding heart. He gave a history of chest
pain. He also stated that he suffered a head (forehead)
injury in 1963. Examination of the mouth, lungs, chest and
heart was normal. Blood pressure was 118/76. A September
1965 chest x-ray showed a pattern of an infiltrate in the
lingula of the left lung. The examiner noted that it was
unclear whether this represented scarring or inactive
infiltrate.
In April 1994, the veteran claimed entitlement to service
connection for heart and pulmonary disorders. He stated that
he was diagnosed as having pneumonia in December 1964 and as
having a heart disorder in September 1965. He further stated
that the civilian doctor that treated him shortly after
service was deceased and that he was treated for a heart
condition at the VA Medical Center (VAMC) in Tuskegee,
Alabama, beginning in March 1994. Accordingly, the RO
obtained the veteran's VA treatment records.
The veteran's VA treatment records showed that he was
diagnosed as having hypertension as early as March 1994. It
was also noted that he had old dentures, and he requested new
teeth. A March 1994 chest x-ray showed apical pleural
thickening.
In June 1994, the veteran had a VA examination. The examiner
noted the veteran wore dentures. The pertinent diagnosis was
hypertension.
The RO denied entitlement to service connection for
hypertension and residuals of pneumonia in a September 1994
rating decision. The RO notified the veteran of this
decision and of his appellate rights by letter dated
September 27, 1994. He did not appeal.
In a November 1994 written statement, the veteran reported
that both of his jaw bones were broken when his head injury
occurred during service. He stated that all of his teeth
were pulled out because of this injury and replaced with
false teeth.
In June 1995 the RO obtained the veteran's VA treatment
records from Tuskegee VAMC, some of which were copies of
those already of record.
The veteran's VA treatment records dated from 1994 to 1995
included a diagnosis of hypertension. A copy of the March
1994 chest x-ray showing apical pleural thickening was
included.
In June 1995, the RO denied entitlement to service connection
for residuals of a mouth injury and loss of teeth. The RO
notified the veteran of its decision and of his appellate
rights by letter dated June 16, 1995. He did not appeal.
In March 1996, the veteran again claimed entitlement to
service connection for heart and pulmonary disorders. He
requested that the RO obtain his medical records from
Tuskegee VAMC, and this was accomplished. VA treatment
records of the veteran dated in 1996 included a diagnosis of
hypertension.
The RO wrote to the veteran in June 1996 and notified him
that service connection had previously been denied for
pneumonia and a heart condition. The letter informed the
veteran that to reopen the claims he had to submit new and
material evidence showing a relationship between his military
service and his disabilities and medical evidence showing
that the conditions had been treated since the date of his
discharge to present.
In July 1997, Chester B. Primm, M.D. reported that the
veteran was a veteran of World War II who was hospitalized
and received sutures during active service due to a fracture
of the anterior left skull. Dr. Primm further stated that
since "discharge he has been having 'black out spells' or
passing out spells that last up to five minutes. Has
problems with memory and poor vision. Wears glasses but has
a foggy vision. Has episodes of going to sleep when he sits
down. Head injury may have contributed to these problems."
Dr. Primm did not say when he began treating the veteran or
for how long or for what conditions.
The veteran underwent VA audiological examinations in July
1996 and July 1997, VA eye examination in October 1997, VA
mental disorders examination in November 1997, and VA
neurological examination in December 1997.
Private treatment records from Randolph County Hospital show
that the veteran suffered a left hemispheric cerebral
vascular accident (CVA) with right hemiparesis/paralysis of
the face and arm in January 1998.
In May 1999, the veteran sought to reopen his claims for
trauma to the mouth with chronic gum and tooth problems,
hypertension, and a lung condition. In support of his claim,
he submitted copies of his service medical records to the RO.
He also provided April 1999 statements from Russell D.
Peterson, D.O. and Robert E. Steele, Chiropractor. He
reported that the RO had provided him a complete copy of his
claims file, which the record reveals he requested in
December 1998.
Dr. Peterson reported that the veteran had asked him to write
a letter concerning several medical conditions he had that
may be service related. Dr. Peterson stated that the veteran
"states that he has chronic problems with his gums and teeth
now wears dentures, and feels that this is . . . service
related as he did not receive adequate dental care in the
service . . . [The veteran] also claims he has problems with
his heart inasmuch as he suffers from hypertension,
cardiovascular disease and aortic sclerosis. He also suffers
with breathing problems related to mild emphysema which may
be service related . . . This is a do as you will letter."
Dr. Steele indicated that he first examined the veteran in
May 1998, at which time he gave a history of taking high
blood pressure medication and of having a stroke. It was
noted that the veteran complained of having difficulty
walking and getting out of breath. The veteran's blood
pressure readings were 160/80 and 140/75.
The veteran testified at a video-conference hearing before
the Board in June 1999 concerning an unrelated claim. He
stated that during active service he was working on the wheel
of a jeep and he did not know if the jeep fell on him or if
he bumped his head. He stated that he was unconscious and
awakened in the hospital and "they was sewing up my head."
The veteran made no mention of a broken jaw, residuals of
trauma to the mouth, or pulmonary or heart disorders.
The veteran submitted another letter from Dr. Primm in which
he reported in July 1999 that he first treated the veteran
for blackout spells and seizures in November 1965.
In October 1999, the RO found, in pertinent part, that new
and material evidence had not been submitted to reopen the
veteran's claims for service connection for residuals of
trauma to the mouth and loss of teeth, or pulmonary or heart
disorders. In an October 1999 letter, the RO notified the
veteran of its decision and defined "new and material"
evidence. A copy of the rating decision was included which
stated the reasons and bases for the denial. The veteran
appealed from the RO's decision to the Board. On appeal, he
argued that the evidence he submitted was new and material.
II. Legal analysis
A. Procedural
The November 9, 2000, enactment of the Veterans Claims
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West Supp. 2001), prescribed VA's
duties to notify claimants for VA benefits of forms and
information necessary to submit to complete and support the
claim, to provide necessary forms, and to assist the claimant
in the development of evidence. VA has promulgated
regulations implementing the VCAA. See 66 Fed. Reg. 45,620-
45,632 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These
regulations confer no substantive rights upon the veteran or
obligation upon VA beyond those in the VCAA, nor do they
abrogate any rights of the veteran conferred by the VCAA.
Consequently the Board may apply them in this case in the
first instance without prejudice to the veteran. VAOPGCPREC
16-92; see Bernard v. Brown, 4 Vet. App. 384, 389 (1993).
VA has a duty to inform the veteran of evidence and
information necessary to substantiate his claims. 38
U.S.C.A. §5103 (West Supp. 2001); 66 Fed. Reg. 45,620, 45630
(to be codified at 38 C.F.R. § 3.159(b)). The October 1999
rating decision gave the veteran notice of the disallowance
of his claims, fully informed the veteran of what the
evidence lacked to reopen his claims and what was necessary
to reopen his claims. Moreover, the veteran obtained a copy
of his VA claims file in December 1998. Consequently, he was
absolutely and completely informed of the contents of his
file as well as its deficiencies in regards of the
requirements to reopen claims. In fact, VA first informed
him of the requirement and character of new and material
evidence in a letter of June 1996. Thus, he was in fact as
well informed about the information and evidence necessary to
substantiate his claim as a person could be. For all of
that, he provided no information about any source of evidence
other than the specific evidence he submitted. In light of
his knowledge of the evidence necessary to substantiate his
claim and his failure to provide any information about the
existence of evidence other than the evidence he submitted,
the Board concludes that the veteran had submitted all
obtainable evidence. There is no notice of record of the
existence of other evidence that VA ought to have informed
him to submit.
The veteran's representative asserts VA should inform the
veteran that he could substantiate his claim with "buddy"
statements reporting
"(1) what happened in service, (2)
allegations of continuity of
symptomatology by the veteran, and/or (3)
the current severity of any disability at
issue. For example, if a lay statement
from a family member indicating that the
veteran, during service, told the family
member of an in-service injury would help
substantiate that such injury occurred
during service, please suggest that we
submit such evidence."
That the veteran's representative cogently articulated a
means of substantiating a claim reveals that the veteran was
informed about that type of evidence. While the VCAA imposes
duties on VA, it is not intended to produce needless delay by
compelling VA to duplicate the actions of the veteran's
representative or to notify him of matters of which he is
shown to have actual notice.
The new law does not require further action of VA to obtain
evidence in this case, even if more evidence existed. This
is true because the VCAA provides that "[n]othing in this
section shall be construed to require the Secretary to reopen
a claim that has been disallowed except when new and material
evidence is presented or secured . . . ." 38 U.S.C.A.
§ 5103A(f) (West Supp. 2001). VA's duty to assist the
veteran by requesting evidence from a federal or non-federal
custodian, affording him medical examinations, or obtaining
medical opinions on his behalf articulated in the new
regulations implementing the VCAA "apply to any claim to
reopen a finally decided claim received on or after August
29, 2001." 66 Fed. Reg. 45620 (Aug. 29, 2001). Whereas the
veteran's claim to reopen the previously disallowed claims in
this case predates August 29, 2001, the specific requirements
that VA seek to obtain evidence on the veteran's behalf,
afford him medical examinations, or obtain medical opinions
do not apply to his case. 66 Fed. Reg. 45620, 45630-31 (Aug.
29, 2001) (to be codified at 38 C.F.R. § 3.159(c), (1), (2),
(3), (4)(iii)).
The veteran's representative also opined that VA should
afford the veteran medical examination or obtain medical
opinion to establish a nexus between current conditions and
service. As noted above, provision of such assistance to
substantiate a claim filed before August 29, 2001, is beyond
the scope of the VCAA. 66 Fed. Reg. 45620 (Aug. 29, 2001).
VA has no undischarged duty to the veteran under the VCAA.
Adjudication of this appeal without further action to assist
the veteran to substantiate his claim poses no risk of
prejudice to the veteran. See, e.g., Bernard v. Brown, 4
Vet. App. 384 (1993); VAOPGCPREC 16-92.
B. Substance
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
Supp. 2001); 38 C.F.R. § 3.303(a) (2001).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
The issue before the Board is whether the veteran has
submitted new and material evidence to reopen his previously
denied claims of entitlement to service connection for
residuals of mouth trauma and loss of teeth, cardiovascular,
and pulmonary disorders.
A decision of a duly-constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the veteran is notified
of the decision. 38 C.F.R. § 3.104(a) (2001). Such a
decision is not subject to revision on the same factual basis
except by a duly constituted appellate authority. Id. The
veteran has one year from notification of a decision of the
agency of original jurisdiction to file an NOD with the
decision, and the decision becomes final if an NOD is not
filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West
1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (2001).
In September 1994 and June 1995 rating decisions, the RO
denied the veteran's claims, as discussed above. The veteran
was notified of the RO's decisions and of his appellate
rights by letters dated September 27, 1994, and June 16,
1995. He did not appeal. Thus, those decisions are final.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a),
3.160(d), 20.302(a) (2001).
Once a decision becomes final under 38 U.S.C.A. § 7105,
absent submission of new and material evidence, the claim may
not thereafter be reopened or readjudicated by VA.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001);
and Suttman v. Brown, 5 Vet. App. 127, 135 (1993). With
regard to petitions to reopen previously and finally
disallowed claims, the Board must first determine whether the
evidence presented or secured since the prior final
disallowance of the claim is "new and material." Manio v.
Derwinski, 1 Vet. App. 140, 145 (1991). The United States
Court of Appeals for Veterans Claims (Court) has explained
that "new evidence" is evidence that is not "merely
cumulative" of other evidence of record. Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991). Evidence is
"material" when it bears directly or substantially on the
specific matter and is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998). Then, if the Board determines that the
evidence is "new and material," it must evaluate the merits
of the claim after ensuring that the duty to assist has been
fulfilled. Id. In deciding the issue of whether newly
received evidence is "new and material," the credibility of
the evidence must be presumed. Justus v. Principi, 3 Vet.
App. 510, 512-513 (1992).
The regulations adopted pursuant to the VCAA have amended the
regulatory definition of new and material evidence, effective
for claims to reopen received on or after August 29, 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001). As this claim to reopen
was filed long before that date, it must be considered under
the regulatory requirements in effect prior to August 29,
2001.
1. Cardiovascular and Pulmonary Disorders
At the time of the September 1994 RO decision, the evidence
of record showed that the veteran was first diagnosed as
having hypertension in March 1994. Apical pleural thickening
was also shown on chest x-ray in March 1995. Service medical
records were negative for any complaints or findings of
hypertension, but showed diagnoses of URIs in February 1956
and June 1965, as well as x-ray findings a pattern of an
infiltrate in the lingula of the left lung in September 1965.
The evidence did not show that the post-service
cardiovascular or pulmonary disabilities were related to any
in-service disease or injury. Any "new" evidence would
have to bear directly and substantially upon this matter and
be so significant that it must be considered in order to
fairly decide the merits of the claims.
The Board finds that new and material evidence has not been
received. The veteran's contentions that he has
cardiovascular and pulmonary disorders that had their onset
during active service are not new. His statements are
essentially a repetition of his previous assertions that were
before the RO in 1994, and are basically cumulative and not
new. See Paller v. Principi, 3 Vet. App. 535, 538 (1992)
(distinguishing corroborative evidence from cumulative
evidence). Moreover, the lay statements concerning the onset
of any such conditions are not competent. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The copies of the service medical records submitted by the
veteran were of record at the time of the September 1994 RO
decision and are therefore not new. Some of the VA treatment
records obtained by the RO in 1995 were also of record at the
time of the September 1994 RO decision and are, likewise, not
new.
Further, the new medical records (VA and private) showing
diagnoses of cardiovascular disease are cumulative. There
was medical evidence before the RO in 1994 showing that the
veteran suffered from cardiovascular disease, diagnosed as
hypertension.
None of the new medical records show that the veteran suffers
from a pulmonary disorder. As discussed below, Dr.
Peterson's notation of mild emphysema was nothing more than a
recordation of history provided by the veteran. Even
assuming that the veteran did provide a medical diagnosis of
emphysema, there was evidence before the RO in September 1994
showing that he suffered from a pulmonary disability, as
shown on x-ray in March 1994, and such evidence would be
cumulative.
Nor do the medical records in any way provide a medical
linkage of any current cardiovascular or pulmonary disorder
with the veteran's active service. There is no medical
evidence indicating that the veteran has any cardiovascular
or pulmonary disorders related to any in-service disease or
injury. Accordingly, even if new, the Board finds that these
records are not so significant that they must be considered
in order to fairly decide the merits of the claims.
The Board is cognizant of Dr. Peterson's statement that the
veteran "claims he has problems with his heart inasmuch as
he suffers from hypertension, cardiovascular disease and
aortic sclerosis. He also suffers with breathing problems
related to mild emphysema which may be service related. . . .
This is a do as you will letter." Dr. Peterson's statement
is little more than a recitation of history provided by the
veteran unenhanced by any additional medical comment. This
statement does not demonstrate that based upon his medical
expertise, Dr. Peterson found any current heart or pulmonary
disability relating back to service and does not provide a
basis to reopen the claims. Cf. Sanchez-Benitez v. West, 13
Vet. App. 282 (1999); LeShore v. Brown, 8 Vet. App. 406
(1995).
Dr. Steele reported the veteran's stroke, several sequelae,
that he takes blood thinners, and several other symptoms.
The statement is utterly uninformative as to any matter at
issue in the claim here under review.
The veteran asserted in his substantive appeal that Dr.
Peterson reviewed his service medical records to reach
conclusions that his claimed conditions began in service.
Dr. Peterson's statement did not rely on the service medical
records either by reference or inference. Its language is
purely that of relating the veteran's espousal of his
history, not of a medical conclusion based on analysis of
medical information informed by historical and current
medical data. It is the application of a doctor's medical
expertise to review of historical medical records that
distinguishes the product of such a review, not the mere fact
that the veteran showed a doctor some records before
soliciting the doctor's transcription of his history as he
told it to the doctor.
Medical records that do not mention cardiovascular or
pulmonary disorders, even if new, are not material. This
evidence is not so significant that it must be considered in
order to decide fairly the merits of the claims. The fact
that the veteran is presently or was impaired due to other
medical problems is not a matter in dispute.
Accordingly, the Board finds that the evidence received
subsequent to September 1994 is not new and material and does
not serve to reopen the veteran's claims for service
connection for cardiovascular and pulmonary disorders.
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a)
(2001).
Where a claimant refers to a specific source of evidence that
could reopen a finally denied claim, VA has a duty to inform
him of the necessity to submit that evidence to complete his
application for benefits. See Graves v. Brown, 6 Vet. App.
166, 171 (1994). VA has no outstanding duty to inform the
appellant of the necessity to submit certain evidence in this
case, because nothing in the record suggests the existence of
evidence that might reopen the finally denied claims. See
38 U.S.C.A. § 5103(a) (West Supp. 2001). VA did not fail to
meet its obligations to inform the veteran of information
necessary to substantiate his claim.
2. Residuals of Trauma to the Mouth and Loss of Teeth
New and material evidence has not been received to reopen the
veteran's claims for service connection for residuals of
trauma to the mouth and loss of teeth. His contentions that
he has mouth and tooth disabilities that had their onset
during active service are not new. His statements are
essentially a repetition of his previous assertions that were
before the RO in 1995, and are basically cumulative and not
new. See Paller v. Principi, 3 Vet. App. 535, 538 (1992)
(distinguishing corroborative evidence from cumulative
evidence).
The copies of the service medical records submitted by the
veteran were of record at the time of the June 1995 RO
decision and are therefore not new. The treatment records
provided by the veteran are cumulative, and therefore not
new. That the veteran wears dentures is evidence that was
before the RO in 1995. The medical records do not in any way
provide a medical linkage of any current mouth or tooth
disorder with the veteran's active service. There is no
medical evidence indicating that the veteran has any mouth or
tooth disorder related to any in-service disease or injury.
Accordingly, the Board finds that these records are not so
significant that they must be considered in order to fairly
decide the merits of the claim.
Medical records that do not mention a mouth or tooth
disorder, even if new, are not material. This evidence is
not so significant that it must be considered in order to
decide fairly the merits of the claim.
Again, while Dr. Peterson noted that the veteran "states
that he has chronic problems with his gums and teeth now
wears dentures, and feels that this is . . . service related
as he did not receive adequate dental care in the service,"
he was merely recording the history provided by the veteran.
A bare transcription of a lay history is not transformed into
competent medical evidence merely because the transcriber
happens to be a medical professional. See LeShore v. Brown,
8 Vet. App. 406, 409 (1995).
Evidence received subsequent to June 1995 is not new and
material and does not serve to reopen the veteran's claims
for service connection for a skin rash of the feet and
residuals of trauma to the mouth and loss of teeth.
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a)
(2001).
VA has no outstanding duty to inform the appellant of the
necessity to submit certain evidence in this case, because
nothing in the record suggests the existence of evidence that
might reopen the finally denied claim of entitlement to
service connection for residuals of trauma to the mouth and
loss of teeth. See 38 U.S.C.A. § 5103(a) (West Supp. 2001).
Accordingly, VA did not fail to meet its obligations to
inform the veteran of information necessary to substantiate
his claim.
ORDER
New and material evidence not having been submitted,
entitlement to service connection for a cardiovascular
disorder is denied.
New and material evidence not having been submitted,
entitlement to service connection for a pulmonary disorder is
denied.
New and material evidence not having been submitted,
entitlement to service connection for residuals of trauma to
the mouth and loss of teeth is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.